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The Lives of Others and modern surveillance

[Text of a presentation I gave before a screening of The Lives of Others at Wolfson College, Oxford].

Although I am nowadays more interested in IP issues, I started my academic life as a privacy lawyer. My first publications dealt with something called Habeas Data, an obscure constitutional right that exists in some Latin American countries. It is no coincidence that privacy was considered to be a constitutional matter in countries that have suffered and were recovering from dictatorships. Nothing brings privacy more into perspective than the use of a government’s surveillance apparatus to imprison, torture and “disappear” its opponents.

It is also not a coincidence that Germany is the birthplace of Europe’s regulatory response to privacy concerns. While data protection is not the same as privacy, they share a common ideal, the principle do information self-determination. After 2nd World War, Germany and Spain implemented legislation to protect individual privacy, but the efforts were limited. It was not until 1981 that the Council of Europe passed the Convention for the protection of individuals concerning automatic processing of personal data, which eventually led to a number of data protection directives and efforts to protect personal data from abuse.

However, these efforts tend to be centred on the application of regulatory powers against the misuse of personal data, and do not deal with privacy as such. This is more relevant when looking at defending individuals against government surveillance. For example, national security is exempt from the Data Protection principles implemented through the Data Protection Act.

Privacy protection itself is in a dire state, we constantly hear and read commentators informing us that privacy is dead. We happily share our information online, and we carry tracking devices that know our every move. As a technology enthusiast and as an avid user of social media, I am painfully aware of just how much data we are making public in exchange of convenience. We give this information willingly, enticed by the “free” services that we are provided with. But as they say, if you are not paying for the product, then YOU are the product.

But the most worrying aspect of modern privacy concerns has come to light in the last year. It so happens that the tinfoil hat brigade was wrong after all, they were wrong in the sense that they under-diagnosed the problem. Thanks to the documents leaked by Edward Snowden, we are now aware that the NSA has been collecting large amounts of data and metadata from mobile phone networks on its own citizens; they have co-opted Internet giants to obtain all manner of Web data about its users, and have in place snooping operations on foreign governments and citizens of other countries. This is bad, but the most worrying revelations from a technical perspective is that we are learning that the NSA has amassed a nightmarish arsenal of technological weapons allowing them to conduct surveillance to a level never before thought possible. The NSA has built backdoors into technologies that we use every day, has corrupted standard-setting processes which allow them to break encryption tools that would protect us from surveillance, and they even have compromised the very network backbone vital for everyday communication.

The Lives of Others is interesting from a historical perspective because it tells the story of a surveillance state from the eyes of both the subject and the perpetrator. The reason why I think that it has become a very relevant film nowadays is because it helps to explode the myth of the innocent bystander. We all hear the mantra that if you have done nothing, you have nothing to fear. Surveillance is for our own good, to keep us safe, it is only directed against the bad guys. The problem is that once in place, it doesn’t take much for people to become subjects of crushing surveillance for whatever reason. This person looks funny, they have the wrong name, they have the wrong religion. Slippery slope arguments are logical fallacies for a reason, but in this case they are warranted, we should all be fearful about lack of oversights and mission creep.

History is full of cases of well-meaning endeavours that were hijacked in order to oppress citizens. Moreover, an important lesson from The Lives of Others is that once these powerful surveillance mechanisms are in place, they are likely to be misused by powerful individuals, be it for personal or political reasons. We are supposed to heed the reassurances of our governments when they tell us that this is all in our best interest, and that we should not have anything to fear.

We must make sure that surveillance apparatus has at the very least a powerful oversight, otherwise we might be sleepwalking into a security-driven dystopia.